From the action of the court in setting aside the verdict upon the first trial, and in rendering judgment in favor of the plaintiff on the demurrer to the evidence upon the last trial, this writ of error was awarded.
The facts were substantially the same upon both these trials, and it is conceded that if the judgment in favor of the plaintiff upon the demurrer to the evidence was erroneous, then its action in setting aside the verdict of the jury upon the first trial was also erroneous.
It is admitted that the plaintiff connected itself with the Commonwealth by a regular chain of title to the land in controversy, and had the right to recover, unless the defendant made good his defense of adverse possession for more than fifteen years prior to the institution of this action.
The defendant, to make out his defense under the statute of limitations, introduced in evidence a deed from R. N. Weir and wife, dated May 26, 1834, to John Deeds, Sr., for the tract of land in controversy, described by metes and bounds, and represented as containing one hundred and seventy eight acres, though in fact it only contained one hundred and nineteen acres. The defendant connected himself with the Weir title by a regular chain of conveyances, but it does not appear that Weir and wife had any title to the land by their deed, which lies wholly within the boundaries of the plaintiff's survey. Deeds, the vendee of Weir and wife, took possession of the land under his deed, cleared and fenced a few acres, claiming title to the whole boundary embraced by his deed. Additional land was cleared from time to time, so that at the time of the trial there were about twenty acres cleared and under fence. The defendant, and those under whom he claims, have continuously held and cultivated the cleared land from the time Deeds took possession in 1834, claiming title to the whole boundary embraced by the deed from Weir and wife. They also cut rail-timber upon the wooded land adjoining the cleared land, with which to build and repair fences upon the land; but a large part of the boundary remained entirely in a state of nature.
At the time Deeds purchased the land in controvrsy and took possession under his deed, no one was in the actual possession of any portion of the plaintiff's 9,000-acre survey, claiming under that title. Afterwards, in the year 1842, David Wilson, who was then the owner of the plaintiff's survey, placed a tenant upon the land, and soon afterwards placed other tenants upon it. From the year 1842 to the institution of this action, the plaintiff, and those under whom he claims, have had one or more tenants upon the large survey outside of the lands in controversy, but never had any one upon, nor exercised any acts of ownership over, the land in controversy.
Upon this state of facts, the Circuit Court was of opinion that the defense of adversary possession had not been made out, except as to that part of the land which was under fence, and which the plaintiff admitted it had no right to recover.
It is settled in this State that when a person, having colorable title, enters upon vacant land, claiming title to the whole tract covered by his title papers, his possession is co-extensive with his boundaries, and this is true although the title conveyed by the writing under which he claims is worthless. Creekmur v. Creekmur, 75 Va. 431, 439; 1 Lomax, Dig. 797; 2 Minor's Inst. 481, 4th ed.
In Taylor v. Burnsides, 1 Gratt., at pages 191-2, Judge Baldwin says, "that the adverse claimant entering and holding under a colorable title, for example, a patent, deed, or other document, upon a vacant possession, gains the actual possession to the extent of his boundaries," and this doctrine, "is sustained by numerous authorities, and contradicted by none that I have seen."
In Overtoil's Heirs v. Davisson, 1 Gratt. 223-4, the court said: "The court is further of opinion that where the land in controversy is embraced by conflicting grants from the Commonwealth to different persons, and the junior patentee enters thereupon and takes and holds actual possession of any part thereof, claiming title to the whole under his grant, that such adversary possession of part of the land in controversy is an adversary possession of the whole, to the extent of the limits of the younger patent; and to that extent is an ouster of the seisin or possession of the older patentee, if the latter has had no actual possession of any part of the land within the limits of his grant."
In such a case, that is, where the true owner has only constructive possession, never having entered upon his land, 'if the junior claimant," says Judge Lee, in delivering the opinion of this court in Koiner v'. Rankin, 11 Gratt. 427, "settle upon the land within the interlock, claiming title to the whole within his boundary, he thereby ousts the senior patentee of his constructive possession, and becomes actually possessed to the extent of his grant," and cites several Kentucky cases with approval, among them the case of Fox v. Hinton, reported in 4 Bibb 559, which holds that where "two patents interfere in part, and, before possession is taken under the elder patent, the junior patentee enters upon the land within the interference, with an intention to take possession, he shall be construed to be in possession to the extent of his claim," In discussing the question, on page 560, the Kentucky court said: "There is no doubt that, according to the settled doctrine of the common law, a person might, by entering upon a part of a tract or parcel of land in the name of the whole, gain the possession of the whole, where the possession was at the time of making such entry vacant."
In Cline's Heirs v. Catron, 22 Gratt., at page 392, this court said upon the subject, that "to be actual, the visible occupancy and improvement of a part of the land in controversy is an actual possession of the whole to the limits of the claim under which it is held, and ousts or interrupts the legal seisin incident to the patent of the senior grantee."